Residents and Families United to Save Our Adult Homes et al v. Zucker, M.D. et al
MEMORANDUM & ORDER, Vila's motion for a 64 TRO is DENIED. Vila's 64 motion for a preliminary injunction is respectfully REFERRED to Judge Reyes for a hearing and an R&R pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). So Ordered by Judge Nicholas G. Garaufis on 8/09/2017. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RESIDENTS AND FAMILIES UNITED TO SAVE
OUR ADULT HOMES et al..
MEMORANDUM i& ORDER
HOWARD ZUCKER,M.D., et al..
NICHOLAS G. GARAUFIS,United States District Judge.
Before the court is Defendant-Intervenor Diana Vila's motion for a temporary restraining
order and a preliminary injunction. CSee PL Proposed Order to Show Cause & TRO ("Proposed
OTSC & TRO")(Dkt. 64); PI. Mem.in Supp. ofProposed OTSC & TRO ("PI. Mem.")
(Dkt. 66); Gooch Decl. in Supp,ofProposed OTSC & TRO("Gooch Decl.")(Dkt. 65).) Vila
seeks an order from this court restraining and enjoining any adult home—as defined in
18 N.Y.C.R.R. § 487.2(a)^—^that is a plaintiffin this action from retaliating against any resident
ofan adult home who has intervened, moved to intervene, or has expressed a desire to intervene
in any ofthe following actions: this action; O'Toole v. Cuomo.No. 13-CV-4166(NGG)
United States v. New York. No. 13-CV-4165(NGG)
(ST); Doe v. Zucker, Index
No. 007079/2016(N.Y. Sup. Ct. Albany Cty.); Oceanview Home for Adults. Inc. v. Zucker,
Index No.006012/2016(N.Y. Sup. Ct. Albany Cty.); and Hedgewood Home for Adults. LLC v.
Zucker,Index No.052782/2016(N.Y. Sup. Ct. Dutchess Cty.); or "any other action or
proceeding that is pending or commenced in which New York state regulations applicable to
^ An adult home is "defined as an adult care facility established and operated for the purpose of providing long-term
residential care, room, board, housekeeping, personal care and supervision to five or more adults unrelated to the
operator." 18 N.Y.C.R.R. § 487.2(a).
transitional adult homes^^^ are challenged by any person or entity." (Proposed OTSC & TRO
For the foregoing reasons, Vila's motion for a temporary restraining order is DENIED.^
Vila's motion for a preliminary injunction is respectfully REFERRED to Magistrate Judge
Ramon E. Reyes for a hearing and a Report and Recommendation("R&R")pursuant to
28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1).
A party seeking a temporary restraining order("TRO")or a preliminary injunction must
(1) irreparable harm;
(2) either(a)a likelihood ofsuccess on the merits or(b)sufficiently
serious questions going to the merits ofthe case to make it a fair
groimd for litigation, and a balance of hardships tipping
decidedly in its favor; and
(3) that a preliminary injunction is in the public interest.
N.Y. ex rel. Schneiderman v. Actavis PLC.787 F.3d 638,650(2d Cir. 2015)(internal quotation
marks and citation omitted);
^Free Country Ltd. v. Drennem No. 16-CV-8746(JSR),
2016 WL 7635516, at *3(S.D.N.Y. Dec. 30,2016)(holding that the standard for entry of a TRO
is "essentially the same as for a preliminary injimction" but a temporary restraining order is
"often granted ex parte", has a "limited lifespan", and "typically occurs before there has been
extensive discovery"). "[A] TRO,perhaps even more so than a preliminary injunction, is an
'extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
^ A "transitional adult home" is defined as an "adult home with a certified capacity of80 beds or more in which 25
percent or more ofthe resident population are persons with serious mental illness." 11 N.Y.C.R.R. § 487.13(a)(1).
^ The court held a hearing on Vila's proposed order to show cause on August 4,2017, and reserved decision as to
Vila's request for a TRO at that time. (See Aug. 7, 2017, Min. Entry.)
showing, carries the burden of persuasion.'" Free Country Ltd.,2016 WL 7635516, at *3
rquoting JBR.Inc. v. Keurig Green Mountain. Inc., 618 F. App'x 31, 33(2d Cir. 2015)
(summary order)(internal citation omitted)).
On the basis ofthe current record,the court finds that Vila has not demonstrated that she
will be irreparably harmed absent entry of a TRO. Accordingly, Vila's motion for a TRO is
denied. Cf Rodriguez ex rel. Rodriguez v. DeBuono. 175 F.3d 227,234(2d Cir. 1999)(per
curiam)("In the absence of a showing ofirreparable harm, a motion for a preliminary injunction
should be denied."); see also Faivelev Transn. Malmo AB v. Wabtec Corp.. 559 F.3d 110, 118
(2d Cir. 2009)(explaining that "[a] showing of irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction"(internal quotation marks and citation
To satisfy the irreparable harm requirement, the movant "must demonstrate that absent
[an]...injunction they will suffer an injury that is neither remote nor speculative, but actual and
imminent, and one that cannot be remedied ifa court waits until the end of trial to resolve the
harm." Wabtec Corp.. 559 F.3d at 118 (internal citation omitted). Moreover, except in
"extraordinary circumstances," injunctions are unavailable where "there is an adequate remedy at
law, such as an award of money damages." Id.(internal citation omitted).
Vila's irreparable harm argument focuses on the fact that administrators at the Mermaid
Manor Home for Adults—an adult home which is not a party to this lawsuit—allegedly
threatened to retaliate against George Iwczenko—an adult home resident who is likewise not a
party to this lawsuit—^for his participation in Doe v. Zucker—a lawsuit that is related but distinct
from this action. (PI. Mem. at 3-4, 7-8.) Vila also alleges that plaintiffs counsel in Doe v.
Zucker threatened to publicly disclose Iwczenko's and other potential intervenors' confidential
medical information in order to deter those individuals from participating in that action. (See id,
at 4-5, 7.)
Vila appears to argue that threats directed at potential intervenors in Doe v. Zucker
indicate that she faces, or may face, a similar threat of retaliation based on her participation in
the present action. Even assuming that the allegations of retaliation are true, those facts do not
provide a basis for finding that Vila faces an injury that is "actual and imminent" with respect to
this case. Wabtec Corp.. 559 F.3d at 118. Vila has alleged no facts that suggest that she herself
is at imminent risk ofretaliation for asserting her legal rights. As such, Vila's injury is merely
hypothetical at this point.
Vila attempts to salvage her irreparable harm claim by relying on a Second Circuit case
in the employment context, which,in her view,recognized that "retaliation against a party
seeking to vindicate her statutory rights not only affects the party herself, but could deter others
similarly situated firom protecting their own rights." (PI. Mem.at 8 (citing Holt v. Cont'l Grp.,
Inc., 708 F.2d 87,91 (2d Cir. 1983)("A retaliatory discharge carries with it the distinct risk that
other employees may be deterred firom protecting their rights ... or from providing testimony for
the plaintiff in her effort to protect her own rights. These risks may be found to constitute
irreparable injury.")).) Vila argues, by extension, that
any efforts by the adult home owners and operators to dissuade
potential intervenors through threats or retaliatory action will not
only irreparably harm [her] and other potential intervenors, but
would also have a chilling effect on all adult home residents who
seek to assert or vindicate their legal rights against the owners and
operators ofthose homes.
(Id.) While the court is cognizant ofthe risk that retaliation against one adult home resident for
exercising his or her legal rights could deter other residents from asserting their rights, the court
declines to find irreparable harm on this basis. The Holt court acknowledged that "[a] retaliatory
discharge carries with it the distinct risk that other employees may be deterred from protecting
their rights"; however,the court expressly rejected the idea that "there is irreparable injury
sufficient to warrant a preliminary injunction in every retaliation case." 708 F.2d at 91.
Similarly, this court cannot conclude that retaliation based on an individual's participation in a
separate lawsuit will necessarily chill participation in this action.
Accordingly, on the basis ofthe current record, the court finds that Vila has not
demonstrated that she will suffer irreparable harm absent entry of a TRO. Her motion is
Vila's motion for a TRO is DENIED. Vila's motion for a preliminary injunction is
respectfully REFERRED to Judge Reyes for a hearing and an R&R pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1).
s/Nicholas G. Garaufis
Dated: Brooklym New York
August 1 ,2017
NICHOLAS G. GARAL^„
United States District Judge
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